Detaining Justice

June 20, 2002

Word this week that Pakistan had detained at least two more Americans suspected of involvement with Al Qaeda underscored a dilemma for Washington: how to treat US citizens on the wrong side of the war against terrorism.

The detainees are believed to be Afghan-Americans not connected to Osama bin Laden's group. But the detentions highlight once again the difficulty of balancing civil rights with national security.

The Bush administration upset many legal scholars and liberal civil rights activists with its recent announcement that Jose Padilla, a Brooklyn-born former convict, was being detained without a lawyer or access to court review on suspicion he was plotting to set off a radioactive bomb.

Mr. Padilla, a convert to a militant interpretation of Islam, is said to have clear ties to Al Qaeda, and that alone tags him as an "enemy combatant" (or "belligerent") and thus subject to special legal handling under previous Supreme Court rulings. That's also the case for Yasser Esam Hamdi, another citizen being held as an "enemy combatant."

John Walker Lindh, meanwhile, the so-called American Taliban, is being accorded full legal rights in a trial. The same is true for noncitizen Zacarias Moussaoui, alleged to have been the 20th hijacker, arrested prior to September's attacks.

The government, understandably, wants to take these possible enemy soldiers out of commission and see what it can learn from them. But even the most dangerous American citizen has a basic civil right to have a judge review his detention. Otherwise, the United States could drift toward unchecked arrests of any citizen by the executive branch.

To safeguard both the war effort and civil rights, the Bush administration should allow the detainees to go before a judge in a secret setting to challenge their "combatant" status.

Federal judges can be trusted just as much as Pentagon or Justice Department officials to sift through the same intelligence information and find reasonable suspicion of a security threat. And the methods of how the intelligence data were collected can also be protected by a federal judge.

The risk of eroding civil freedoms and the risk of another terrorist attack can both be reduced if all three branches of government can be trusted to do the right balancing act.